Ex-KAF servicemen turn into senior citizens as they await compensation for victimisation after the 1982 attempted coup
The miscellaneous case number 1526 of 2005 that had seen 10 former soldiers of the Kenya Air Force sue the government for compensation, following their dismissal from the military after the foiled 1982 coup, was decided on February 12, 2012 by Justice Mumbi Ngugi.
The judge ruled that the rights of the ex-officers were violated and found that they were entitled to compensation. She however noted that the amount of compensation to be awarded should, in the words of lawyer Mureithi Mbugua, be “moderate as the events of August 1, 1982 were hurtful” to ordinary people who were now being asked to compensate the ex-soldiers. Consequently the highest award in this case was Sh3 million.
Petition number 340 of 2012 came before Justice Isaac Lenaola and on November 1, 2013, he came up with a similar verdict as Justice Mumbi. Justice Lenaola however awarded the ex-servicemen Sh5.5 million each, as the case was different in that it comprised officers who were never brought before the court martial and were only dismissed from service following prolonged detentions.
According to Mbugua who prosecuted these two cases, Justice Lenaola has been explicit on the fact that there is no exception to torture. He has maintained that the prohibition of torture is an absolute right under international law and under the constitution, a message he has been sending to the attorney general’s office and the defence department. “Nothing justifies torture.”
Mureithi, however, laments that it is one thing to get a favourable monetary judgement against the government and a different ball game to recover the money. No compensation has been forthcoming in both cases.
“In the 2012 verdict, we have gone through all the motions including extracting a judgement decree, a certificate of costs and we have even got a certificate of order against government. We have served all these on the attorney general, but ironically the law says you cannot execute against government by way of attachment of its assets.”
Consequently the only recourse open for lawyers in such cases is to beg the AG (who by the way has not appealed the ex-servicemen cases) to honour the court order. “In fact, one year into his appointment, Prof Githu Muigai is on record saying that he did not consider appealing against judgments concerning the Moi era torture cases.” That notwithstanding, there has been no effort to pay the awarded compensation and no communication from the AG’s chambers on the status of the compensation claims has been forthcoming.
Thus frustrated, Mbugua and other lawyers with such cases were last week forced to springboard another petition asking the judiciary to re-look the Government Proceedings Act “that immunizes government from attachment, leaving successful litigants at the mercy of the loser.”
The lawyers have declared this Act unconstitutional following a precedent set in South Africa where, through the Crown Liability Act, the same provisions obtained. “The constitutional court of South Africa found these provisions unconstitutional.”
Mbugua is, however, conscious of the serious consequences of striking these provisions out (with the government having accumulated billions of shillings in judgement debts) and so suggests that parliament and the AG be given a specific time to pass a legislation providing how the judgment debt will be met. “This should be done blow by blow and stage by stage ensuring predictability and that there is recourse if any step is not taken by any office.”
He argues that the Government Proceedings Act violates the constitutional principles on the prudent use of public finances, noting that in the 2012 case the judgment amount then was Sh24 million which has now risen to Sh32 million due to interest accrued.
Strategically, lawyer Mbugua has been filing the ex-Kenya Air Force compensation cases in batches of 10 officers, for ease of handling, leading of evidence and in getting reasonable levels of damages.
Awards have been given for the two batches in the cases mentioned above with damages now standing at about Sh100 million. Mureithi has three pending petitions in Mombasa, one in Eldoret and three in Nairobi. He is yet to file another two. “Other lawyers have filed similar petitions and there is a huge one pending before the Industrial Court with about 280 petitions.”
Mureithi opines that the reason why the government is being forced to pay such huge amounts for events that happened more than 30 years ago is that the coup attempt was not properly investigated. “What the loyalists in the Armed Forces did at that time was to round up and detain basically everyone who was a soldier in the Kenya Air Force, from Wajir (where nothing was happening), to those who were on leave, on sick leave, off duty and even those training abroad, yet violence only occurred in Nairobi.
“The government also disbanded the Kenya Air Force and came up with the ’82 Air Force outfit. In a sense there was mass victimisation of the Kenya Air Force servicemen and no court martial could deal with the entire unit within the time provided by the Armed Forces Act.”
The cases following the aftermath of the coup attempt on August 1, 1982 revolved around the issues of prolonged detention of the arrested officers before they were arraigned before the court-martial.
The lawyers, who represented them, argued that none of the arrested officers was arraigned within the stipulated time under the law, under the constitution and under the Armed Forces Act.
In the course of their arrest and detention, the officers were ruthlessly tortured both physically and psychologically, including being stripped naked at the point of arrest. They were later subjected to brutal assault by being forced to walk on their knees, put in water-logged cells and denied basic necessities including food and water.
Particularly for those who were detained for long periods and then dismissed from their positions without being accused or heard, the final aspect of the cases is that the officers were unfairly dismissed from the armed forces. Mbugua says the claims by the ex-officers are declarations that their rights were violated.
Most of the former soldiers seeking compensation are either in their late 50s or 60s, elderly persons according to the Kenyan constitution. They are senior citizens whose last steady job would most likely be the military service prior to the attempted coup.
“These are people who became almost unemployable as they were labelled as rebels who caused blood-letting and hence an untouchable lot for employers. Ironically, the majority of these officers were young people in their early 20s when they were dismissed, so the coup and its aftermath ruined their lives.”
This has meant that pushing their cases has been quite challenging. “These are people with no resources and organising them and getting them when you need them has not been easy. They are scattered all over and at times they would not even have the resources to come to the office. The meagre resources come slow and fairly belated.”
But the frustration is not limited to the victims with their lawyers having co-ordination problems because of the sheer numbers of litigants involved. “The other main problem is managing the anxieties and high expectations as these being poor people, the judgments appear to be their only hope. They expect now that the judgements have been made, the millions should automatically be given to them.”
The lawyers have also invested time, energy and resources into these cases and they also expect to be paid.
Although the forms of torture were almost the same, the ex-soldiers have different stories and so assembling the petitions have not been easy. Some were arrested from such far off places as Wajir, Nanyuki and Mombasa and so the stories of torture, mistreatment and unlawfully detention flow from Wajir, the stops in between and all the way to the Eastleigh airbase.